B.C. judge strikes down law making physician-assisted suicide illegal

NEAL HALL, VANCOUVER SUN06.16.2012

B.C. Supreme Court Justice Lynn Smith decided Friday that the Criminal Code provisions making physician-assisted death illegal are invalid. She ruled that the current law violates the constitutional rights of the three plaintiffs who led the landmark legal challenge.Mark Van Manen
/ Vancouver Sun Files

Joe Arvay, lawyer for the plaintiffs in the physician-assisted death case, outside court in Vancouver June 15, 2012.Neal Hall
/ Vancouver Sun

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VANCOUVER — A B.C. Judge ruled Friday to strike down the law that makes physician-assisted death illegal in Canada.

B.C. Supreme Court Justice Lynn Smith ruled that the current law violates the constitutional rights of the three plaintiffs who led the landmark legal challenge.

"They succeed because the provisions unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Lee Carter and Hollis Johnson," the judge concluded in a 395-page written judgment released today.

While declaring the law against euthanasia invalid, the judge suspended that declaration for one year to allow Parliament to set out what requirements are needed.

"During that period of suspension, a constitutional exemption will permit Ms. Taylor the option of physician-assisted death under a number of conditions," Smith ruled.

The judge set out the conditions in her ruling: Taylor must provide written consent, her attending physician must attest that she is terminally ill and near death with no hope of recovery, and the physician and a consulting psychiatrist must attest that Taylor is mentally competent.

Once those conditions are met, Taylor will have to apply in court for an order allowing a physician to assist her death, the judge said.

The judge found that "palliative care cannot relieve all suffering" and accepted that legal end-of-life practices allow doctors to withhold life-sustaining treatment and administer palliative sedation to the point of hastening death.

"There are respected practitioners who would support legal change," Smith wrote.

"They state that providing physician-assisted death in defined cases, with safeguards, would be consistent with their ethical views," she added.

The judge acknowledged that while public opinion is divided on the issue of physician-assisted death, a minority support having the option to end life rather than suffering excruciating pain from a terminal illness.

"The most commonly expressed reason for maintaining a distinction between current accepted end-of-life practices and physician-assisted death is that any system of safeguards will not adequately protect the vulnerable," Smith wrote.

"The evidence shows that risks exist, but they can be largely avoided through carefully designed, well-monitored safeguards," the judge ruled.

The case is expected to be appealed by the federal or B.C. governments, who opposed striking down the law.

Their position was that very good medical care is available for the dying, including palliative sedation to reduce end-of-life pain for patients suffering terminal illnesses such as cancer, ALS and Huntington's disease.

"We hope the government will not appeal," Joe Arvay, the constitutional lawyer representing the plaintiffs, said Friday.

He said his client, Taylor, who is terminally ill, cried with relief when she heard that the judge had ruled in her favour.

Taylor issued a statement Friday after the ruling, which said: "I'm deeply grateful to have the comfort of knowing that I have a choice at the end of my life. This is a blessing for me and other seriously and incurably ill individuals.

"This decision allows me to approach my death the same way I tried to live my life — with dignity, independence and grace."

The judge fast-tracked the case so Taylor could participate.

The 64-year-old Kelowna woman suffers from amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig's disease, a fatal neurodegenerative disease that slowly robs individuals of their motor skills. Most die within three to five years.

"This case is a major victory for individual rights at the end of life," BCCLA lawyer Grace Pastine told reporters.

"The court has recognized today that Canadians who are seriously and incurably ill will have the right to request that a physician assist them to end their life in a dignified and a humane manner," she said.

Pastine said Taylor, when told how the judge ruled Friday, said: "I'm deeply grateful to have the comfort of knowing that I have a choice at the end of my life. This is a blessing for me and other seriously and incurably ill individuals.

"This decision allows me to approach my death the same way I tried to live my life — with dignity, independence and grace."

Pastine said the BCCLA launched the lawsuit and the ruling is a major step forward in the protection of human rights in Canada.

"This is a case about real people with serious illnesses who through this law can find some measure of peace and comfort knowing they have a choice," she said.

"The Supreme Court has decided that Gloria others like her should be able to decide how much suffering to endure at the end of life, based on their own values and their own beliefs," Pastine said.

"The court has recognized that the government has no place at the bedside of seriously ill Canadians who have made firm and considered decisions about the amount of suffering to endure at the end of life and the level of care they will or will not receive in their final days."

Making physician-assisted death illegal puts it in the back alley, similar to how abortion was done before it was legalized, the plaintiff's lawyer, Joe Arvay told the court.

The other plaintiffs in the case included the B.C. Civil Liberties Association, Kwantlen Polytechnic University criminology instructor Hollis Johnson and his partner Lee Carter, whose mother Kay died before trial.

They sought to have the court declare Section 241 (b) of the Criminal Code declared unconstitutional because it violates sections 7 and 15 of Canada's Charter of Rights and Freedoms.

The Farewell foundation for the Right to Die was granted intervener status and supported the plaintiffs' position.

One of the interveners opposed to striking down the law was the Euthanasia Prevention Coalition of B.C. (EPCBC).

"We're disappointed but not surprised at the radical nature of the decision today," Dr. Will Johnston, EPCBC coordinator, said outside court today.

"We think this judgment decided to minimize and to disregard the evidence of harm in other jurisdictions where assisted-suicide and euthanasia has been practised," he said.

"And we are extremely concerned about the situation of elder abuse, which is a major issue in Canada," Johnston said.

"I think this will be a disaster for Canadians, who expect themselves to be protected by the law," he added.

"To suggest that we can have one foot on the gas and one foot on the brake I think is unrealistic. It's not accurate to say that we can draw a bright line between competent people, who have only physical illness and are close to death, and depressed people."

The case was the most comprehensive challenge of the law since Sue Rodriguez lost her case 18 years ago in the Supreme Court of Canada. Rodriguez also had ALS.

Most of the case was determined through the affidavits of 71 witnesses.

The court only heard the testimony of a handful of medical experts in the recent case.

Three U.S. states permit physician-assisted death or assisted death, including Oregon and Washington.

The few Western countries that allow it are the Netherlands, Belgium. Luxembourg and Switzerland.

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